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News: Criminal Law System Totally Useless?

Criminal law addresses several issues with assumed results. It addresses the need for fairness and closure by punishing disfavored behavior. It addresses the need for moral retribution in the same fashion. It is supported by lawyers and lawmakers as having prophylactic effect, preventing crimes from happening because people are fearful of punishment; this utilitarian argument is most favored by legal folks who are thinking about law, as opposed to abstract fairness, moral values or satiating a lust for revenge.

Unfortunately it seems that laws may not prevent people from doing evil after all. I do not know where that leaves us because intuitively it just feels wrong to say, hey criminal laws do not have impact so let people do what they want, we can save lots of money on the court system and on cops and jails.

I thus eagerly await June 5, when Harper-Collins publishes “The (Honest) Truth About Dishonesty: How we Lie to Everyone–Especially Ourselves.”

One can quarrel with the book’s pop-culture title and its grammar, but the author is a credentialed behavioral economist (they write the very best books, don’t they –all those statistics that just disprove everything we ever thought) who says that probability of getting caught has “no effect” on the occurrence of dishonest behavior. If that be true, then criminal laws therefore will exist only for much-maligned reasons: enforcement of subjective or moral values, or revenge.

We have long recognized that certain crimes of passion are not prevented by criminal law: the domestic dispute, the Jihadist, the withholding of tax dollars that go to support the military, . No one seriously contends that these folks are impacted by the thought of jail time.

Bernie Madoff clones are particularly hard to think about in these terms.

But it seems there is a lot of experimental support for the proposition that dishonesty is controlled by things like “honor pledges,” placing signatures at certain positions on documents, moral reminders, and simple supervision. And interestingly, there is indication that increased amounts to be stolen may, for the vast majority of people other than hard core crooks, actually decrease dishonesty; apparently you can rationalize stealing a dollar while considering yourself a fundamentally good person, but somewhere up the line most people don’t feel comfortable taking a really large sum.

Now, whether the experimental techniques used by the researchers (asking college students questions that afford them the chance to cheat, lie and steal if they so choose) have analogy to harsher and more raw factual situations, and whether the lack of criminal laws will turn loose the very small percentage of truly evil people in the world against whom we need protection, is likely to prove a philosophical question (at least until some economist begins to think about it). But the idea (which by the way I have extrapolated, it seemingly is not the thesis of the book itself) that much of our criminal system is a waste of time is pretty startling, and worthy of a closer look when the no-doubt overpriced hard cover edition hits the streets.

I pause to express confusion about one aspect of this implied result. There are indeed physically dangerous people in jail. Pathological killers, sex offender recidivists, etc. Perhaps since by definition the criminalization of their offenses is just the rubric for locking them up, we need another category of confinement, which will capture these folks for us; and perhaps that new nomenclature will foster new thinking about treatment of these people, if they cannot be dismissed as “criminals.” I am discomforted mightily by spending a lot of societal capital, in time and money, to address this aspect of the issue, but perhaps doing so is the measure of an increasingly humane approach to incarceration.

It sure does get complicated and I am sure I am leaving a trail of half-thoughts and logical lapses in my wake here.

Perhaps I can ask the publisher to comp me under the guise of my posting a blog about the book. Now that I know that getting caught isn’t going to hold me back, there is nothing standing between me and a free Kindle download. Don’t you just love economic analysis?

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The statements and views expressed in this posting are my own and do not reflect those of my law firm, are intended for general informational purposes only, and do not constitute legal advice or a legal opinion.